AB v Law Society of New South Wales [2018] NSWSC 1975 | Case summary

Supreme Court of NSW|2018-06-29|Before: Davies J

Judgment

At its meeting on 1 February 2018 the Professional Conduct Committee of the Law Society resolved that proceedings be initiated against the solicitor AB in the Civil and Administrative Tribunal, Occupational Division, pursuant to s 300(1) of the Legal Profession Uniform Law (NSW). The solicitor challenges that decision, in substance, on three bases. The first is that the Law Society failed to provide procedural fairness to the plaintiff. The second is that the Law Society failed to consider all possibilities pursuant to the Uniform Law before making its decision. Thirdly, the plaintiff alleges that the Law Society's reasons for its resolution were inadequate.

Background

On 3 March 2016, the plaintiff was an employed solicitor with Firm 1. Her supervising partner was CD.
On the morning of 3 March 2016 CD sent a message to AB asking her to pop in and see her. When AB did so, CD gave a one page piece of paper to her and said "Can you witness this? XY needs a new passport for the trip to New York City". XY was CD's child. CD showed AB XY's passport photograph. The single sheet piece of paper was part of the application for a passport for XY. AB observed CD sign the application. When the paper was handed to AB, there were two signatures on the page being CD's and one EF. EF was CD's partner or former partner, and was the father of XY.
AB then witnessed CD's signature as a person over the age of 18 years and not related to CD. She did not witness it as a solicitor or in her capacity as a solicitor.
CD then said "Can you witness E's as well?" (CD referred to EF as E). AB said "Has E been in to sign this?" CD said "Yes, I met him this morning". On that basis AB witnessed EF's signature. She says that she had no reason to believe that the signature was not that of EF and she felt compelled by CD to sign it.
It seems, although it is not clear, that AB received a voicemail message from the passport office later that day. There was no evidence, one way or the other, to indicate whether she returned the call or spoke to anyone from that office at that time.
The following day, AB was in CD's office going through matters that needed to be dealt with before each of them left Firm 1 to go to work at Firm 2. AB overheard a phone call CD had with a person likely to have been EF. After the call finished, CD said to AB that E had received a call from the passport office about the passport application. AB became suspicious at that point that EF may not have signed the application because CD had said to EF on the phone that she was taking XY to New York.
What is subsequently recorded by AB's solicitor, Mr Greg Walsh, in his disclosure letter to the Law Society of 17 November 2016 is somewhat confused. He identifies a call that AB was said to have been received from Tamara at the passport fraud squad in Melbourne on 30 August 2016. AB and Tamara had a few missed phone calls, but when AB eventually spoke to Tamara she told her that she did not witness EF's signature, but that CD had witnessed it on 3 March.
AB is then said to have gone immediately to see CD and said, "What the fuck is going on? I have just had a call from the fraud squad about XY's passport". CD said "E signed the form with me at 8am 3 March 2016". Later that day AB confronted CD in the office of another partner at the firm and said to her, "You signed the form didn't you?" to which CD said, "I signed the form but forged E's signature".
CD's admission could not have been made on 30 August because the partner in whose office it was said to be made was one of CD's partner's at Firm 1. Further, by 30 August, AB had spoken confidentially to a partner at Firm 2 where both AB and CD had gone to work, and had related this conversation where CD made the admission. In that way, the dates of events set out in Mr Walsh's further letter to the Law Society of 30 January 2017 do not allow for the admission of forgery to have been made by CD on 30 August 2016.
My conclusion is, therefore, that the telephone conversation between AB and Tamara took place on 4 March 2016, and was followed by CD's admission to the forgery of EF's signature. That conclusion is supported by what Mr Walsh reported in his letter of 30 January 2017: that between 4 March 2016 and 31 May 2016 AB tried to talk to CD about the matter, that CD told AB to "keep quiet" about the situation, and that CD became increasingly hostile towards AB. All of that is consistent with serious wrongdoing on CD's part in having forged EF's signature. It is not consistent with there being minor wrongdoing on CD's part, namely, having asked to AB to witness the signature of EF that was genuinely affixed earlier on 3 March when CD was present.
Contrary to the confidential nature of the conversation between AB and the partner at Firm 2, that partner first informed CD of the conversation and then reported to AB that CD denied any wrongdoing in the matter. On 1 September 2016 AB contacted the Law Society, and she was referred to the Senior Solicitor's Scheme, coming to be represented by her present solicitor, Mr Greg Walsh .
Firm 2 commenced an investigation into the allegations on 13 September 2016. Mr Walsh, acting for AB, made a written voluntary disclosure on her behalf to the Law Society by a letter dated 17 November 2016.
The conclusion of the Firm 2 investigation was that AB did not tell the truth about the facts in dispute, particularly about whether she had witnessed EF's signature on the passport application. Subsequently Firm 2 gave notice to AB that they were considering terminating her employment. On 11 January 2017 AB resigned from Firm 2.
She subsequently undertook the Bar Examinations and applied for a Practising Certificate from the NSW Bar Association on 5 June 2017. The Bar Association conducted its own enquiry into the matter, and determined on 30 August 2017 that AB was nevertheless a fit and proper person to have a Practising Certificate.
On 30 March 2017 the Law Society initiated a complaint against AB under s 266 of the Uniform Law. The letter to Mr Walsh of 30 March 2017 said that a preliminary assessment had been conducted and the complaint had been identified as a disciplinary matter. The text of the complaint was as follows: 1. The solicitor falsely witnessed the signature of CD on a passport application on or about 3 March 2016. 2. The solicitor falsely witnessed the signature of EF on a passport application on or about 3 March 2016.
Subsequently the Law Society proposed to close the first of those complaints in circumstances to which I will refer presently. The resolution of the Professional Conduct Committee of 1 February 2018 concerned only AB's witnessing of the signature of EF.
As a result of the events of 3 March 2016 and what thereafter happened, the plaintiff developed serious mental health issues, which led to her being treated by a psychiatrist, Dr David Sturrock, and to her admission to hospital on more than one occasion, including with suicidal ideation.
In his letter in response to the notification of the complaint, Mr Walsh on 31 March 2017 wrote asking that the matter be dealt with as a matter of urgency because of the plaintiff's mental condition. In the course of the letter Mr Walsh said that AB understood from the investigator appointed by Firm 2 that CD asserted that EF attended Firm 1's office at 8am on 3 March 2016 and signed the passport application in CD's presence and that AB herself was present and witnessed EF's signature. Mr Walsh reiterated what he alleged in the voluntary disclosure letter of 17 November 2016, that that version of events was untrue.
During the course of the exchange of correspondence in 2017, the Law Society sent a letter to Mr Walsh on 20 June 2017 saying this: Based on your response of 31 March 2017, I understand AB's account of events to be that when she attended on CD, on or about 3 March 2017, CD handed her a passport application that already bore the signatures of CD and a signature purporting to be that of EF (refer your paragraph 15). I further understand that AB asserts the following exchange took place between herself and CD (refer your paragraph 18): "CD then said to AB words to the effect "...can you witness E's as well?. AB said "… has E been in to sign this?" CD said "Yes, I met him this morning". In a statutory declaration provided to the Society by CD as part of its investigations, CD, relevantly, states as follows: "... I recall when AB witnessed the form she laughed and said to me words to the effect "I know he didn't sign this. I used to have to do this type of thing all the time at my old firm." Furthermore, in relation to AB's termination of employment by Firm 2, AB (scil. CD) states, relevantly, as follows: "A number of solicitors also started at Firm 2 from Firm 1 around the time I commenced as a partner. This included AB who started at Firm 2 on 6 March 2016. AB did not wish to remain at Firm 2 and took periods of leave after she started and then resigned in late 2016. … I was aware that there were Issues between the firm and AB ..."
In response, Mr Walsh wrote on 26 June 2017 saying that, in order to afford the plaintiff procedural fairness, the full statutory declaration provided to the Society by CD should be provided to her. He said that AB denied the statement that when AB witnessed the form she laughed and said the words attributed to her.
On 3 July 2017 Mr Walsh followed up with a further letter to the Law Society asking them to provide him with CD's response "as it ought to be provided to afford AB procedural fairness".
On 6 July 2017, the Law Society replied to Mr Walsh noting his letter of 26 June 2017 and his telephone message of 5 July 2017 requesting a full copy of the statutory declaration of CD. The letter went to say: You have been provided with everything that is relevant to the Society's investigation of the complaint about AB. Those parts of CD's statutory declaration that do not relate to your client or to the complaint about her will not be provided to you.
In fact, the Law Society's statement in that letter was untrue. Not only did the Law Society have the statutory declaration of CD from which it had quoted, but it had another statutory declaration, made at an earlier time, with answers to questions which had been asked of CD by the Law Society. That only became clear when Mr Walsh saw the report from the Bar Association mentioned earlier. That statutory declaration was not made available until a subpoena and a notice to produce was issued to the Law Society shortly before the present hearing. The other statutory declaration has never been made available to the plaintiff.
On 2 June 2017 AB made application to the NSW Bar Association for a practising certificate. On 24 August 2017 the Bar Association advised that it had resolved to grant AB a practising certificate. On 30 August 2017 the Bar Association issued its Notice under s 464 of the Uniform Law. In its report, the Bar Association made reference to a statutory declaration sworn by CD on 21 April 2017. The Bar Association's summary of that Statutory Declaration was to this effect: (a) CD requested AB to witness her signature and EF's signature on a passport application for her daughter; (b) CD signed the passport application form in AB's presence; (c) CD did not observe EF signing the form in AB's presence; (d) the signature purporting to be that of EF was not his signature.
The Bar Association made reference to a further "statement" of CD, although it had not received such statement. In fact, the Bar Association made reference to what that statement was said to contain by Mr Walsh in his letter to the Law Society of 26 June 2017. Mr Walsh reported that this "statement" (he called it a statutory declaration) had CD saying: I recall when AB witnessed the form she laughed and said to me words to the effect, 'I know he didn't sign this. I used to do this type of thing all the time at my old firm'.
On 12 September 2017 Mr Walsh wrote to the Law Society in these terms: I note that in the decision of the New South Wales Bar Association, there is disclosed the fact that CD swore two Statutory Declarations which were provided to the Law Society of New South Wales. I advise that until I received the decision of the New South Wales Bar Association, I was not previously aware that CD had sworn two Statutory Declarations. Correspondence in respect of this issue only referred to a Statutory Declaration in respect of which there was a reference to an allegation against AB made by CD. I confirmed that the Statutory Declaration was the second Statutory Declaration provided by CD to the Law Society. The first Statutory Declaration of CD was never in anyway disclosed to me on behalf of AB. The first Statutory Declaration of CD contains significant admissions which are directly relevant to the allegations of professional misconduct which were being investigated against AB by the Law Society of New South Wales. In this regard, I raised the fundamental proposition that the Law Society had a duty of disclosure of any material that was relevant to such allegations and the response from you was to the effect that all material that was "telling" as to the issue of professional misconduct against AB, had been disclosed. That clearly is not the case. In these circumstances, I raise what is the current status of the Law Society's investigation. I also raise the issue, yet again, of why it is that evidence directly relevant to the investigation of the allegations of professional misconduct against AB were not disclosed by the Law Society of New South Wales. Indeed, the first Statutory Declaration was concealed from AB and that gives rise to grave concerns as to the investigation conducted by the Law Society of New South Wales as to this matter.
There was no reply to that letter. Mr Walsh wrote again on 16 October 2017. He made reference to some authorities on procedural fairness, to aspects of the Uniform Law, and said: …[I]t is submitted that the decision to conceal from AB and myself as her solicitor the contents of the First Statutory Declaration of CD provided to the Law Society on 21 April 2017 is utterly contrary to the obligations of procedural fairness/natural justice. … Neither AB nor myself have been provided with the document the Law Society alleges that she falsely witnessed.
The Law Society responded in a letter of 24 October 2017 saying, relevantly: It remains the case all relevant material has been provided to your client. Any material not made available to your client will not be considered against your client. Conversely, any relevant material provided going forward which is considered against your client will be provided to her. Please be aware that the Society intends to rely on the following material: 1. The following paragraphs in a notice pursuant to section 371 of the Legal; Profession Uniform Law (NSW) dated 31 March 2017 served on CD: (a) "1. On or about 3 March 2016 did you request that AB witness your signature on an application for a passport for your daughter (the passport application)?" and (b) "4. If your answer to question 1 above is "yes", did you sign the passport application in the presence of AB", and 2. The following paragraphs in response set out in a statutory declaration made by CD on 21 April 2017: (a) "Yes", and (b) "Yes". The above material will be relied on in support of a recommendation that the first complaint set out in the Society's letter dated 30 March 2017 be closed.
It was again not true that all relevant material had been provided to AB. The Law Society had still not made available the statutory declaration from CD in its possession. The letter of 20 June 2017 which first disclosed the existence of a statutory declaration by CD did not mention the date of that statutory declaration. It could not, therefore, be inferred from the references in the letter of 24 October 2017 that what was being spoken of was a second statutory declaration by CD.
The first hint that there were two statutory declarations (as opposed to one statutory declaration and one statement, as the report from the Bar Association identified) came in the letter of 8 November 2017 from the Law Society which said: I confirm again that all relevant material has been provided to your client. In respect of the statutory declarations made by CD, aside from the parts of those statutory declarations which you have been previously informed about, none of the balance of those statutory declarations are being considered in the Law Society's complaint against your client.
In that way, the existence of the second statutory declaration was revealed. However, for the third time, the false assertion was made that all relevant material had been provided. The existence of two statutory declarations may have been revealed but the Law Society had merely extracted parts of each of those statutory declarations, taking refuge in the assertion that none of the balance of them (whatever it was that comprised the balance) was not being considered.
On 6 December 2017 Mr Walsh wrote to the Law Society saying that AB had contacted him in an agitated and distressed state. She was actively suicidal. Contact was made urgently with her treating psychiatrist, Dr Sturrock. She was admitted by way of emergency admission to a hospital.
Mr Walsh complained about the delay it had taken to investigate the complaint, pointing out that it was more than 12 months since he made the disclosure on AB's behalf that led to the investigation. He contrasted the timely manner in which the Bar Association had acted in considering the evidence and delivering comprehensive reasons for its decision to grant AB a practising certificate.
On 7 December, the Law Society wrote to Mr Walsh saying: The complaint (and the 2 conduct issues) has been referred to the Professional Conduct Committee for consideration on 14 December 2017. It will be recommended that the conduct issue relating to witnessing the signature of: 1. EF be closed; and 2. CD be dealt with accordingly. … As the investigation into this matter remains ongoing, it is possible that further separate complaints may be made against your client. … I do however confirm that at this stage, there are presently no other complaints against your client nor is there any present intention to make any further complaints.
Nothing further was ever said about "further separate complaints". Nor was any basis for that suggestion ever identified. However, the incorrectness of the recommendations was only clarified by Mr Pierotti from the Law Society on 15 December after he initially denied any knowledge of the letter. Complaint 1, of course, was going forward but the one involving false witnessing of CD's signature was the one being closed.

The 14 December 2017 decision

On 15 December 2017 the Law Society sent a letter to Mr Walsh in the following terms: Complaint by Law Society of New South Wales against AB The Professional Conduct Committee of the Law Society considered this matter at its meeting on 14 December 2017. The Committee resolved as follows: RESOLVED that AB (Solicitor) be informed of:- 1. The issues of professional misconduct which, in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions within 28 days of the date of the letter notifying the Solicitor of these resolutions; and 2. The Committee's opinion that, subject to any submissions, it should resolve to initiate and prosecute proceedings against the Solicitor in the Civil and Administrative Tribunal, Occupational Division, as it is the Committee's opinion that the alleged conduct may amount to professional misconduct pursuant to section 300(1) of the Legal Profession Uniform Law (NSW). Professional Misconduct 2. The Solicitor falsely witnessed the signature of EF … on a passport application on or about 3 March 2016. 3. It is the Committee's opinion that, subject to any submissions, the appropriate orders to be sought on a referral to the Tribunal of this complaint are as follows: Orders to be Sought 1. That the Solicitor be reprimanded. 2. The Solicitor pay the costs of the Society as agreed or assessed. 3. Any further or other orders the Tribunal deems appropriate. 4. Consideration of this complaint is to be placed on the agenda of the whole of the Committee as soon as practicable after the expiration of 26 days from the date of the letter notifying the Solicitor of these resolutions. FURTHER RESOLVED that the following complaint be closed on the grounds that, having conducted a preliminary assessment and investigation, the Committee is of the opinion that the alleged conduct of AB does not amount to either unsatisfactory professional conduct or professional misconduct. Complaint 1. The Solicitor falsely witnessed the signature of CD on a passport application on or about 3 March 2016. Reasons for Decision 1. Complaint 1 is that the Solicitor falsely witnessed the signature of CD on a passport application on or about 3 March 2018. 2. The complaint arises from the Solicitor's disclosure of her conduct on 17 November 2016: 3. The Solicitor says that on 3 March 2016, CD handed her part of a Child Passport Application form (Form) in which "There were two signatures on the page: CD's and EF". 4. The Form required, among other things, that CD sign the form and that it be "Witnessed by [a person who] (must-be aged 18 or over)". 5. The Solicitor says she witnessed the signature of CD (which was on the form). 6. On the basis of the above, it can be inferred that the Solicitor was not present at the time CD signed the form. 7. Mr Greg Walsh, solicitor on behalf of the Solicitor, has in his letter dated 17 November 2016, clarified that "AB did not falsely witness CD's signature. CD signed the form (one page) whilst AB was in her office on 3 March 2016". 8. The Solicitor's version of events is also supported by CD's statutory declaration made on 21 April 2017, whereby CD confirmed that she signed the Form in the presence of the Solicitor. 9. Accordingly, Complaint 1 must be closed as the solicitor did not falsely witness the signature of CD. 10. If your client wishes to make any further submissions of fact or law, or as to the orders to be sought then please provide the Society with those submissions within twenty eight (28) days of the date of this letter. If no submissions are made within that time, the Committee will reconsider this complaint on the information presently available.
It may be observed that no reasons for the first decision dealing with witnessing EF's signature were provided.
On 16 December 2017 Mr Walsh sent a lengthy submission on behalf of the plaintiff.

The 1 February 2018 decision

Finally, on 6 February 2018 the Law Society sent the following letter to Mr Walsh reporting on the resolution of the Professional Conduct Committee of 1 February 2018: Complaint by Law Society of New South Wales against AB This matter was considered by the Professional Conduct Committee of the Law Society at its meeting on 1 February 2018 when the Committee resolved as follows: RESOLVED that the Committee is of the opinion that the alleged conduct of AB (Solicitor) may amount to professional misconduct and that proceedings be initiated and prosecuted against the respondent lawyer in the Civil and Administrative Tribunal, Occupational Division, pursuant to Section 300(1) of the Legal Profession Uniform Law (NSW). Professional Misconduct The Solicitor falsely witnessed the signature of EF (EF) on a passport application on or about 3 March 2016. Orders to be Sought 1. That the Solicitor be reprimanded. 2. The Solicitor pay the costs of the Society as agreed or assessed. 3. Any further of other orders the Tribunal deems appropriate. Reasons for Decision 1. At the material times, the Solicitor was employed by Firm 1 and under the supervision of CD, partner at Firm 1. 2. CD's former husband is Mr EF and her daughter is XY. 3. The complaint arises from the Solicitor's disclosure of her conduct on 17 November 2016. 4. On 3 March 2016, CD handed the Solicitor part of a Child Passport Application form (Form) in which "There were two signatures on the page: CD's and EF". The Form required, among other things, that CD and EF sign the form and that it be "Witnessed by [a person who] (must-be aged 18 or over)". 5. CD and the Solicitor then had the following conversation: CD said: "Can you witness this? XY needs a new passport for the trip to New York city. CD said: "Can you witness E's as well?" The solicitor said: "Has E been in to sign this?" CD said: "Yes I met him this morning." 6. The Solicitor says she signed the Form as witness to the signatures of CD and EF. 7. CD was present before the Solicitor at the time she signed the Form. 8. EF was not present before the Solicitor at the time he purportedly signed the Form. 9. Later that day, the Solicitor received a voice message on her mobile phone from the Commonwealth Passport Office fraud squad. 10. The Solicitor did not return the call but went to CD and the following took place: The Solicitor said: "what the fuck is going on I have just had a call from the fraud squad about XY's passport?" CD purportedly started to panic. CD said: "I feel sick" The Solicitor then realised that EF had not signed the Form. 11. Later that day, the solicitor went to CD and the following took place: The Solicitor said: "You signed the form didn't you?" CD said: "I signed the form but forged E's signature. 12. On 17 November 2016, Mr Greg Walsh, solicitor on behalf of the Solicitor, by way of letter dated 17 November 2016 made the following disclosure of the conduct to the Law Society: "On 3 March 2016 AB at the office of Firm 1 was directed by partner namely CD to witness CD's signature on a passport application. The application related to the issue of passport for CD's daughter, XY (a minor). AB witnessed CD's signature. CD made representations to AB as to the signature of EF which was already on the document. AB witnessed the witnessed the signature in circumstances where EF was not physically present." 13. The Solicitor has admitted that the signature purportedly belonging to EF was not signed in her presence. By signing that she witnessed the signature, she has therefore falsely witnessed the signature. 14. Mr Walsh provided substantive submissions to the Society in response to the complaint by way of letters dated 17 November 2016, 31 March 2017, 11 July 2017 and 16 December 2017. This correspondence is considered as the exculpatory material in these reasons. 15. The Committee is satisfied that the alleged conduct in the complaint may amount to professional misconduct as opposed to unsatisfactory professional conduct. 16. The Committee has considered Section 299 of the Uniform Law and the exculpatory material in relation to the alleged conduct and the orders to be sought. The Society will contact you again once an Application to Disciplinary Findings and Orders has been filed with the NSW Civil and Administrative Tribunal, Occupational Division.
On 9 May 2018 Mr Walsh served a subpoena on the Law Society for production of the whole of the complaint file in relation to AB and for a number of other documents including both the statutory declarations of CD.
The Law Society responded by pointing to ss 467 and 468 of the Uniform Law. On 23 May 2018 Mr Walsh sent a Notice to Produce requiring production of the two statutory declarations of CD. On 20 June 2018 the Law Society replied again referring to ss 467 and 468 of the Uniform Law. The letter went on to say that instructions from CD's lawyers had been sought to consent to the provision of the copies of the two statutory declarations dated 21 April 2017 and 14 June 2017. CD's lawyers said that they had no objection to the statutory declaration of 21 April 2017 being provided with appropriate redactions of CD's personal information and that in the first instance access would be restricted to AB's legal representatives only. The statutory declaration became Exhibit A in these proceedings.
Further correspondence ensued, with Mr Walsh asserting that there had been waiver in respect of the second statutory declaration. At the hearing of the present summons, production of that statutory declaration was not sought.
With regard to the statutory declaration of 21 April 2017, the significant question and answer not disclosed by the Law Society was question 2 set out in a notice to CD under s 371 of the Uniform Law, and the answer to it in the statutory declaration, as follows: 2. On about 3 March 2016, did you request that AB witness the signature of your ex-husband, EF, on the passport application? A. I requested AB to witness a signature purporting to be the signature of my ex-husband EF on the passport application. The signature was not that of EF.

Legislative provisions

The following provisions of the Uniform Law are relevant: 260 Objectives The objectives of this Chapter are - (a) to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and (b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and (c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession. … 270 Disciplinary matters A disciplinary matter is so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct. … 276 Preliminary assessment of complaint (1) The designated local regulatory authority must conduct a preliminary assessment of a complaint. (2) When conducting the preliminary assessment - (a) the designated local regulatory authority may request further information to be provided within a specified period by the complainant, the respondent or another person who may have relevant information; and (b) the designated local regulatory authority is not bound by rules of evidence and may inform itself on any matter in any manner as it thinks fit. (3) Any evidence or information obtained by the designated local regulatory authority in the course of conducting a preliminary assessment may be used by the designated local regulatory authority or an investigator in or in relation to any later investigation or consideration of the complaint. (4) The designated local regulatory authority may complete a preliminary assessment even if requested information is not provided within the specified period. 277 Closure of whole or part of complaint after preliminary assessment (1) At any stage after the preliminary assessment of a complaint, the designated local regulatory authority may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable - … (d) the subject matter of the complaint has been or is already being investigated; (e) the subject matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body; … (j) the designated local regulatory authority is satisfied that it is otherwise in the public interest to close the complaint. … 279 Notification to respondent about complaint (1) The designated local regulatory authority - (a) may, after receiving a complaint, notify the respondent of the complaint or give the respondent a summary or details of the complaint; and (b) subject to section 281, must, as soon as practicable after the designated local regulatory authority decides to investigate a complaint under section 282 and if it has not already done so, give the respondent a summary or details of the complaint and a notice informing the respondent of the right to make submissions; and (c) must, before making a determination and if it has not already done so, give the respondent a summary or details of the complaint and a notice informing the respondent of the right to make submissions. (2) A notice informing the respondent of the right to make submissions must specify a period of 21 days in which submissions must be received or a shorter or longer period if the designated local regulatory authority reasonably believes a different period is warranted in the circumstances. 280 Submissions by respondent (1) The respondent to a complaint may, within the period specified under section 279, make submissions to the designated local regulatory authority about the complaint or decision or its subject matter, unless the complaint has been closed. (2) The designated local regulatory authority may at its discretion extend the period in which submissions may be made. (3) The designated local regulatory authority must consider any submissions made by the respondent within the specified period in response to the notice of a decision to investigate a complaint before deciding what action is to be taken on the complaint, and may consider submissions received afterwards. (4) The rules of procedural fairness are not breached merely because no submissions are received within the specified period and the designated local regulatory authority makes a determination in relation to the complaint, even if submissions are received afterwards. … 282 Power to investigate complaints (1) The designated local regulatory authority may investigate the whole or part of a complaint. (2) The designated local regulatory authority may appoint a suitably qualified person to conduct a complaints investigation. (3) The appointment may be made generally, or in relation to a particular law practice, or in relation to a particular complaints investigation. Note Chapter 7 applies to an investigation under this Division. … 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. 298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct - (a) conduct consisting of a contravention of this Law, whether or not - (i) the contravention is an offence or punishable by way of a pecuniary penalty order; or (ii) the person has been convicted of an offence in relation to the contravention; or (iii) a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention; (b) conduct consisting of a contravention of the Uniform Rules; (c) conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than this Law), whether or not the person has been convicted of an offence in relation to the contravention; (d) charging more than a fair and reasonable amount for legal costs in connection with the practice of law; (e) conduct in respect of which there is a conviction for - (i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty; (f) conduct as or in becoming an insolvent under administration; (g) conduct in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act; (h) conduct consisting of a failure to comply with the requirements of a notice under this Law or the Uniform Rules; (i) conduct in failing to comply with an order of the designated tribunal made under this Law or an order of a corresponding authority made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Law or a corresponding law); (j) conduct in failing to comply with a compensation order made under this Chapter. 299 Determination by local regulatory authority - unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent law practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders - (a) an order cautioning the respondent or a legal practitioner associate of the respondent law practice; (b) an order reprimanding the respondent or a legal practitioner associate of the respondent law practice; (c) an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice; (d) an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work; (e) an order requiring - (i) the respondent lawyer; or (ii) the respondent law practice to arrange for a legal practitioner associate of the law practice to undertake training, education or counselling or be supervised; (f) an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25 000) to the fund referred to in section 456; (g) an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice. … 300 Initiation and prosecution of proceedings in designated tribunal (1) The designated local regulatory authority may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal if the designated local regulatory authority is of the opinion that - (a) the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal; or (b) the alleged conduct may amount to professional misconduct. (2) As soon as practicable after deciding to initiate proceedings under this section, the designated local regulatory authority must give the complainant and the respondent to the complaint written notice of the decision. ... 315 Duty to deal with complaints It is the duty of the designated local regulatory authority to deal with all complaints properly made and to deal with them in accordance with this Law and the Uniform Rules. 316 Duty to exercise discretions fairly It is the duty of the designated local regulatory authority, in exercising or considering whether or how to exercise any applicable discretions when dealing with a complaint (including the conduct of any investigation), to act in a fair manner, having regard to the respective interests of the complainant and the respondent and to the public interest. 317 Duty to deal with complaints efficiently and expeditiously It is the duty of the designated local regulatory authority to deal with complaints (including the conduct of any investigations) as efficiently and expeditiously as is practicable. 318 Notice of decisions and determinations (1) It is the duty of the designated local regulatory authority in relation to a complaint to give the complainant and the respondent written notice of - (a) a decision to close the complaint; or (b) a determination made in relation to the complaint (including a costs dispute); or (c) a decision made as a result of an internal review in connection with the complaint. (2) A notice under this section must be given as soon as practicable after the decision or determination is made, and must include a statement of reasons for the decision. (3) The designated local regulatory authority need not give a party to a complaint notice of a decision or determination to close the complaint if the designated local regulatory authority considers that it would be appropriate in the circumstances to dispense with notifying that party. Note Section 300 provides for notice to be given of a decision to initiate proceedings in the designated tribunal. 319 Rules of procedural fairness (1) The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Law or the Uniform Rules, apply in relation to - (a) the investigation and determination of complaints by the designated local regulatory authority; and (b) the making of other decisions by the designated local regulatory authority in respect of complaints; and (c) the procedures of the designated local regulatory authority in respect of complaints and any associated matters. (2) Subsection (1) does not apply in relation to a decision of the designated local regulatory authority that the whole or part of a complaint should be resolved by the exercise of functions relating to consumer matters (see section 269(1)).

The plaintiff's health

On 30 March 2017 Dr David Sturrock, a psychiatrist treating the plaintiff, provided a report to Mr Walsh. In that report, which was provided to the Law Society under cover of Mr Walsh's letter of 31 March 2017, Dr Sturrock said that he had diagnosed AB with an Adjustment Disorder with depressed mood or Major Depressive Episode. He set out the medications she was taking and went on to say: The Law Society complaint took AB by complete surprise and it is having a significant and detrimental impact on her mental wellbeing. She is experiencing a sense of shock, depressed mood, nightmares, insomnia, anxiety, panic attacks, tearfulness, nausea, dry mouth and poor concentration. She is experiencing suicidal ideation, which is of great concern. I have offered to hospitalise her under my care but she declines to do so at the present time. It is my view that this complaint with the Law Society be resolved as a matter of urgency, to protect her from further deterioration and to protect her from acting on her suicidal ideation.
On 6 December 2017 the plaintiff sent an email to the officers of the Law Society dealing with the complaint and to the President saying as follows: I am writing to you now in absolute desperation. Last night I attempted an overdose. It hasn't worked and sadly I've just woken up - but I will try again today. Your two letters totally contradict each other in regards to what is happening with my the complaints against me. Ms Foord's letter of 8/11 says one complaint is going to the PCC with the other and more complaints to follow but won't identify what further complaints. Is this what you do to someone who you know is mental (sic) ill? write cryptic letters to them? Ms Wright's of 29/11 says its all going before PCC 'shortly'. Whose letter is right? I have major depression, and anxiety, you both know this you've both seen the reports. I feel by this stage 12 months later (since the law society had my disclosure) that what the law society wants is for me to just kill myself myself and make it easier for everyone. For the last three years I have:

been bullied by CD;
been subject to constructive dismissal proceedings;
been before the bar PCC to get a practising certificate;
been subject to for the last 13 months to the law society. I am literally begging you to let me know what's going on, to stop providing cryptic letters and to provide me with a proper update and the time scales. I cannot take anymore of this.

Dr Sturrock provided a further report dated 22 December 2017, which was forwarded to the Law Society under cover of Mr Walsh's letter of 28 December 2017. The report said: 1. AB was admitted to The Sydney Clinic urgently on Thursday 7th December 2017 and discharged on the following Monday morning, 11 December 2017. She was admitted in a state of emotional crisis, with intense suicidal ideation, triggered by the Law Society investigation relating to CD and AB's former employment at Firm 2. In hospital, she was treated with her usual antidepressant, Cybalta as well as Imovane, Circadin and Seroquel. I saw her daily while she was there. She was generally of low mood while she was there. On admission, she was expressing a strong wish to kill herself so she was placed on 15 minutely observations with no leave. By the time of discharge she was feeling safer and a little more settled. I saw her the following day. I continue to see her. She has my mobile phone number for urgent contact if needed. I last saw AB in my rooms on 19th December 2017. Her mood remains generally low. She has symptoms of anxiety, nausea, dry mouth, tearfulness, lack of appetite and insomnia. 2. In my opinion, her depression continues to be exacerbated by the lack of closure of the investigation by the Law Society. 3. The letter from the Law Society of 15 December 2017 was a source of distress for her. She was hospitalized, as discussed above, for some days; and settled without major change to her medications. 4. I have said lo you on a number of occasions that it would be in AB's best interests to have the Law Society investigation resolved as soon as possible. I maintain that view. She has already had to work over 12 months and a further 6-9 months will be undoubtedly stressful. As the Tribunal hearing may not be for several months, possibly another year, that is a long time to wait. I am not able to say now she will cope with proceedings at that time, including giving evidence and cross-examination, as it is so far away. At the time she can see me as often as she needs, medications can be attended to and she can even be hospitalised. AB is very distressed that she has been referred to the Tribunal. I obviously leave that to you to decide whether to ask that the Tribunal proceed without requiring her attendance.

Submissions

The plaintiff submitted that the Law Society denied her procedural fairness because it did not provide her with copies of the statutory declarations of CD, did not disclose all of the contents of them, and did not even inform her that there was a further statutory declaration until October 2017. The plaintiff submitted that the Law Society denied her procedural fairness in never having provided a copy of the application form the Society alleged had been falsely witnessed by AB. The plaintiff submitted that she was denied procedural fairness because the Law Society failed to deal with submissions made on her behalf in relation to investigations into her conduct having been conducted by the Bar Association, her former employer, Firm 2, and by DFAT. The plaintiff submitted that the Law Society failed to give any or any genuine consideration to the submissions made to it concerning the plaintiff's ongoing mental health issues.
The plaintiff submitted that the decision of 1 February 2018 did not include a statement of reasons as required by s 318(2) of the Uniform Law. The plaintiff submitted that there was no reference in the reasons provided to the plaintiff's mental health issues, to the consequences of what occurred to AB in terms of employment at Firm 2, and to how the statutory declarations of CD and any inconsistencies in them were relied upon or applied by the Law Society in reaching its decision.
The plaintiff submitted that no reasons were given for determining that the conduct was capable of amounting to professional misconduct or to why a determination was not reached under ss 299 and 300 of the Uniform Law.
The Law Society submitted that the reasons given in the decision of 1 February 2018 satisfy the requirements of s 318(2) of the Uniform Law, are consistent with what is outlined in both Menon v Council of the Law Society of New South Wales [2016] NSWSC 1322 and Levitt v Council of the Law Society of New South Wales [2017] NSWSC 834, and clearly provide sufficient reasons to enable a court to determine whether the decision is, or may be, infected by an error of law.
The Law Society submitted that what is contained in paragraphs 14 and 16 of the reasons demonstrate that the submissions made by Mr Walsh in his letters of 17 November 2016, 31 March 2017, 11 July 2017 and 16 December 2017 were considered by the Law Society in coming to its decision.
The Law Society submitted that in considering whether the plaintiff's conduct in falsely witnessing the signature on the passport application was sufficient to amount to unsatisfactory professional conduct that would be more appropriately dealt with by the Tribunal or whether it was professional misconduct within the meaning of s 300 of the Uniform Law, the Law Society was not required to consider the plaintiff's mental health following the conduct comprising the complaint.
The Law Society submitted, in relation to the allegation of a denial of procedural fairness, that it was not required to disclose each and every piece of information which was in its possession or was accessible to it. Rather, it was required to disclose only the information on which it relied for the purposes of the decision of 1 February 2018, and it did disclose that material.The Law Society submitted that the plaintiff's submissions did not address how she was denied procedural fairness or how the decision of 1 February 2018 might be infected by an error of law
The Law Society submitted, in answer to the plaintiff's submissions relying on s 277, that it was not obliged to refer to the investigation by the Bar Association, because the Bar Association's task was to determine whether the plaintiff was a fit and proper person to hold a practising certificate. That was a different question from the matter to be determined by the Law Society when considering ss 299 and 300 of the Uniform Law.
After I reserved my decision in this matter, on 26 October 2018 the Court of Appeal delivered its judgment in Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247 (Levitt (CA)) on appeal from the decision of Wilson J in Levitt (referred to at [52] above), a decision to which reference was made by both parties. The parties were asked if they wished to make further submissions with regard to the decision of Levitt (CA) in the Court of Appeal. The parties indicated that they wished to do so, and further written submissions were lodged.
The plaintiff submitted that, despite the different wording of the provisions in the 2004 Act considered in Levitt (CA), the Law Society was required to provide reasons to show that it had considered the various provisions of the Uniform Law including ss 280, 296, 297, 298, 299 and 300. The plaintiff submitted that the failure of the Law Society to provide adequate reasons in that regard entitled the Court to infer, in accordance with Levitt (CA) at [69], that those provisions had not been considered.
The Law Society submitted that the majority reasoning in Levitt (CA) had to be confined to the interpretation of the provision of the 2004 Act. The Law Society drew attention to the different language in ss 537 and 540 of the 2004 Act compared with ss 299 and 300 of the Uniform Law. In that way, the Law Society submitted, there was no requirement for it to have undertaken the compound exercise of the kind stipulated by McColl JA at [55] of Levitt (CA).
The Law Society submitted that it complied with the requirements of the Uniform Law. To place an obligation on it to provide reasons for a decision not to dispose of the matter summarily would be read in language to ss 300(2) and 318 of the Uniform Law.

Procedure for disciplinary matters

The scheme of Ch 5 of the Uniform Law provides that, where a complaint is made, whether by the designated local regulatory authority or otherwise, the designated local regulatory authority must conduct a preliminary assessment: s 276. After the preliminary assessment of the complaint the authority may close the complaint for any of the reasons given in s 277. There is no obligation to give to the lawyer against whom the complaint has been made an opportunity to be heard or make a submission before determining whether or not to close a complaint under s 277: s 277(4).
If the authority decides to investigate a complaint it must give the respondent a summary or details of the complaint and a notice informing the respondent of the right to make submissions: s 279.
The authority may find that the respondent has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any one of a number of orders: s 299. If that determination is made the matter does not proceed to the Tribunal. The authority may initiate and prosecute proceedings in the Tribunal if the authority is of the opinion that the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the Tribunal or the alleged conduct may amount to professional misconduct: s 300.
The authority must deal with all complaints in accordance with the Law and the Uniform Rules: s 315. It is the duty of the authority to act in a fair manner having regard to the respective interests of the complainant and the respondent and to the public interest: s 316; and to deal with the complaints as efficiently and expeditiously as is practicable: s 317.
It is the duty of the authority to give the respondent written notice of a decision to close a complaint or of a determination made in relation to the complaint, and such notice must be given as soon as practicable after the decision or determination is made, and must include a statement of reasons for the decision: s 318. The rules of procedural fairness apply in relation to the investigation and determination of complaints, the making of other decisions in respect of complaints, and the procedures of the authority in respect of complaints: s 319.
Counsel for the Law Society accepted that there was an obligation to provide reasons but said that that obligation did not arise under s 318. That was said to be because s 318(1)(b) dealt with determinations which were made under ss 299 and 302, and because s 318(1)(c) was concerned only with a particular kind of review that was not being conducted here. In short, the submission was that a decision under s 300 was not a determination made in relation to the complaint. That seems principally to be because s 299 in both its heading and its terms refers to "determination" and "determine", and s 302 contains as part of its heading the word "determination", but s 300 does not so refer.
I do not agree that s 318(1)(b) is so limited. Section 302 itself does not refer to a determination but to the Tribunal making orders. In any event, s 318 is directed to the regulatory authority whereas s 302 is concerned with orders of the Tribunal. If the authority forms the opinion referred to in s 300(1), the initiation of proceedings in the Tribunal must amount in that regard to a determination so to initiate those proceedings. I note also that in its further submissions directed to the Court of Appeal's decision in Levitt (CA), the Law Society seemed to accept that its obligations to provide reasons arose from s 318: see paragraphs 20-23 and 29 of the Law Society's further submissions.

Procedural fairness

In Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI (2016) 259 CLR 180; [2016] HCA 29 the plurality judgment said at [82]-[83]: [82] [C]ompliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a "practical injustice". [83] Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.
The first matter to note from that extract is that procedural fairness brings about practical injustice if: The procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power.
The second thing to note is that the person whose interests are apt to be affected must be put on notice of the content of information that the decision maker "might take into account" for coming to a conclusion adverse to that person.
In the present case, the plaintiff admitted wrongdoing in the voluntary disclosure made on 17 November 2016. That disclosure related in the first instance to a lie by CD that she had herself witnessed EF's signature earlier in the morning of 3 March, but then an admission later that day that she had forged EF's signature.
Subsequently, when Firm 2 conducted its investigation, it was disclosed to AB that CD had denied any wrongdoing. That resulted in Firm 2 determining that AB did not tell the truth about the facts in the dispute about whether AB had witnessed EF signing the passport or not. She had resigned from Firm 2 as a result of the investigation and the indications given to her by that firm. That was information available to AB when the Law Society initiated the complaint against her.
The submissions that were being made on AB's behalf after the initiation of the complaint were all made on the basis that CD was maintaining her denial of any personal wrongdoing. Part of the case put forward on behalf of AB was that she had been told CD witnessed EF's signature earlier that morning, and that AB felt obliged because of the relationship between her and CD to witness the application in those circumstances. Further, the Law Society's complaint included an assertion that AB did not properly witness CD's signature on the application.
The belief that AB had about the stance being taken by CD was confirmed by the letter from the Law Society to Mr Walsh. That letter referred to AB's assertion that CD told her that EF had signed the application earlier that morning. There was no reference to any admission on CD's part of forgery. Further, reference was made to a statutory declaration, a copy of which has not ever been provided to AB, that AB was supposed to have laughed when she witnessed the passport application form and said words to the effect, "I know he didn't sign this. I used to have to do this type of thing all the time at my old firm".
AB continued to make submissions without the knowledge (a) that CD agreed that she had properly witnessed CD's own signature on the application, and (b) without the knowledge, seemingly, that CD had admitted the forgery to the Law Society (as appears from paragraph 11 of the reasons for the 1 February 2018 decision) despite her apparent denials during the remainder of 2016 and into 2017. Further, answer 2 in the statutory declaration of 21 April 2017 used the words "signature purporting to be the signature of my ex-husband EF". In the circumstances, that could only mean that CD was accepting that the signature was not EF's. That was a significant matter supporting AB's credit. It was the account she had given all along.
As I have already noted, AB's solicitor only found out by chance from the Bar Association's report that there was another statutory declaration. Not only did the Law Society not inform Mr Walsh of that fact, but it falsely said in its letters of 6 July, 24 October and 8 November 2017 that Mr Walsh had been provided with everything that was relevant to the Society's investigation of the complaint. The first letter was false because the Law Society had CD's statutory declaration of 21 April 2017 which it did not disclose until 24 October 2017. The other letters were false because the Law Society did not disclose the other material in the statutory declaration of 21 April 2017, particularly answer 2, and did not provide the other statutory declaration. Further, it never provided a copy of the application which AB signed despite requests to do so.
If AB had been provided with both statutory declarations and a copy of the signed application, submissions could have been made regarding the lack of credit of CD where forgery had been admitted. It would have put the false statement in the statutory declaration by CD referred to in the letter of 20 June 2017 from the Law Society into perspective. It would have tended to show that, from the time of the initial disclosure to the Law Society, AB's account had not varied. It may well have impacted on submissions about whether it was appropriate for the matter to go to the Tribunal because CD would be a witness of no credit. Further, purporting to witness a statutory declaration if the deponent had actually signed it, as AB always believed to be the case, was a far less serious matter than if the signature had been forged to the knowledge of the witness or if the witness was reckless as to the veracity of the signature.
Disclosure of this material should also have meant, if the Law Society had moved expeditiously, that the complaint that she had not witnessed CD's signature on the application would have been dismissed months before that occurred. It is not difficult to see why an early dismissal of a baseless complaint might have impacted on a consideration of a related complaint, being the witnessing of EF's signature, when AB's credit was an important consideration.
In all of those ways, I consider that the Law Society denied procedural fairness to AB, because the late disclosure and the failure to disclose information so constrained her opportunity to propound her case for a favourable exercise of the power, which included a power to resolve that the matter constituted unsatisfactory professional conduct only. That carried with it the availability of resolving the matter under s 299 of the Uniform Law.

Content of the reasons

It seems to me that the second and third bases relied upon by the plaintiff are inextricably linked because the only way to determine if the Law Society failed to consider all possibilities is by reference to the reasons provided for the decision it made.
As far as the requirement for the content of the reasons are concerned, regard must, of course, be had to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, whilst recognising that the Court was concerned in that case with a medical panel in the position of a panel under such legislation as the Motor Accidents Compensation Act 1999 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Hence, the warning contained at [45] of the judgment of French CJ, Crennan, Bell, Gageler and Keane JJ must be heeded: General observations, drawn from cases decided in other statutory contexts and from academic writing, about functions served by the provision of reasons for making administrative decisions are here of limited utility. To observe, for example, that the provision of reasons imposes intellectual discipline, engenders public confidence and contributes to a culture of justification, is to say little about the standard of reasons required of a particular decision-maker in a particular statutory context. The standard of reasons required even of courts making judicial decisions can vary markedly with the context.
However, there are parallels with what the medical panel in that case had to do and what the Law Society in the present case had to do under s 300, in conjunction with s 299, of the Uniform Law. At [47] the judgment of the High Court said: The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. …
Under s 300, the authority had to form an opinion that the alleged conduct may amount to professional misconduct, or may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal. In forming that opinion, the connection with s 299 is clear.
In Menon Fagan J considered the adequacy of the reasons of the Law Society Council in resolving to commence proceedings in the Tribunal under s 537 of the Legal Profession Act 2004 (NSW) ("the 2004 Act"). So that the relevance of that decision and the decision in Levitt can be properly understood, it is necessary to set out some of the provisions of the 2004 Act. 537 Decision of Commissioner or Council after investigation (1) After completion of an investigation of a complaint against an Australian legal practitioner, the Commissioner or a Council must: (a) commence proceedings in the Tribunal under this Chapter, or (b) dismiss the complaint under this Part, or (c) take action under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions)). (2) Unless section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) applies, the Council or the Commissioner must commence proceedings in the Tribunal with respect to a complaint against an Australian legal practitioner if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. (3) Nothing in this section affects section 512 (Withdrawal of complaints). (emphasis added) … 540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions (1) This section applies if: (a) either: (i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or (ii) the report of an independent investigator is given to the Commissioner, and (b) the Commissioner or Council (as the case requires): (i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and (ii) is satisfied that the practitioner is generally competent and diligent, and (iii) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner. (2) The Commissioner or Council may do any or all of the following: (a) caution the practitioner, (b) reprimand the practitioner, (c) make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint, (d) determine that a specified condition be imposed on the practitioner's practising certificate. (3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct. (4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. (5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner. … 542 Reasons to be provided to complainant and practitioner (1) If a complaint has been made about an Australian legal practitioner, the complainant and the practitioner are entitled to receive a statement of reasons from the Commissioner or Council, as the case requires, in relation to: (a) a decision to dismiss the complaint, or (b) a decision to commence proceedings in the Tribunal with respect to the complaint, or (c) a decision to take action under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions), or (d) a decision to omit, from the allegations particularised in a disciplinary application made to the Tribunal in respect of the complaint, matter that was originally part of the complaint. (2) The right of the complainant to apply to the Commissioner for a review of the decision must be included in the statement under this section, except in the case of a decision to commence proceedings in the Tribunal. (3) A statement to a complainant is not required under this section in the case of an official complaint.
Section 537 is similar to s 300 of the Uniform Law but there are differences. Section 537 was inextricably linked with s 540: Levitt (CA) at [55]-[58] and [84] per McColl JA and [125]-[130] per Macfarlan JA. Of some significance are the words in s 537(2) "unless s 540 … applies". Another significant difference is that ss 537 and 540 required satisfaction to a reasonable likelihood, whereas s 300 requires the forming of an opinion about whether conduct "may amount to" professional misconduct or unsatisfactory professional conduct.
In Menon the reasons given for the decision were at [29] as follows: Having regard to the facts arising from, and the material annexed to, the Report of Mr Courtenay dated 27 September 2013 ("the report") and the correspondence between the Society and the practitioner's legal representative the Committee is satisfied there is a reasonable likelihood the practitioner will be found by the Tribunal to have engaged in professional misconduct.
Justice Fagan referred to various portions of the High Court's decision in Wingfoot, and went on to say: [42] By reference to the two considerations identified at [46] of the judgment in Wingfoot Australia Partners Pty Ltd v Kocak it may be said in the present case, first, the nature of the Council's decision under s 537(2) of the Act may be compared with that of the Local Court deciding whether a defendant facing a criminal charge should be committed to the District or Supreme Court for trial, pursuant to the Criminal Procedure Act 1986 (NSW). The Council is not required to make factual findings upon all of the evidence that its investigations may have unearthed. Nor is it required to choose between reports or advice which it may have received, on the one hand, and exculpatory submissions for the solicitors against whom complaint has been made on the other hand. [43] In reaching satisfaction as to "reasonable likelihood" that unsatisfactory professional conduct or professional misconduct will be found in the Tribunal, the Council would be entitled to take the evidence against the solicitors at its face value and significance, subject to making due allowance for any features of the evidence itself or of surrounding circumstances which might cause the Tribunal to discount the evidence or to put an innocent construction upon the facts. A limitation is placed upon the degree of detail required in the Council's reasons by the circumstance that it does not make under s 537(2) a final decision on the merits of the complaints. The Council's decision is a filter upon the cases which are to go to the Tribunal for the resolution of parties' rights arising out of a complaint. It follows from this consideration that the reasons which the Council is to give under s 542(1)(b) need not address competing submissions nor purport to resolve conflicts of evidence or alternative constructions of possible findings of fact. [44] With respect to the second of the considerations referred to at [46] in Wingfoot Australia Partners Pty Ltd v Kocak, I infer from the structure of the Act that the purpose of the legislature in requiring that reasons be given is, as was the case for the legislation which was under consideration by the High Court, "to enable a court to see whether the opinion does or does not involve any error of law". The consequences for a legal practitioner of disciplinary proceedings being commenced by the Council in the Tribunal are obviously very significant. While such proceedings are pending, in a case where the Council seeks an order that the solicitor's name be removed from the Roll, there is an imminent threat to the solicitor's pursuit of his occupation and livelihood. Damage to reputation merely from the institution of disciplinary proceedings may destroy a professional practice. Pendency of such proceedings must at least hamper business and professional plans and development and create uncertainty for clients of the practitioner. [45] By enacting s 542(1)(b), Parliament has recognised the need for a mechanism to ensure that Tribunal proceedings are not commenced capriciously or without due consideration. I infer that the purpose of requiring reasons to be given is to enable the affected practitioner to verify that the Council has acted according to law in forming its satisfaction regarding the reasonable likelihood of the Tribunal making a finding adverse to the solicitor. For this purpose, as in the case of the legislation considered in Wingfoot Australia Partners Pty Ltd v Kocak, reasons which explain the path by which the Council reached its conclusion will suffice. The reasons need not also identify items of evidence which the Council discounts or facts which it considers insignificant or the basis upon which it expects arguments exculpatory of the solicitor will not be accepted.
His Honour then held that the stated reasons did not constitute reasons at all. His Honour said at [46]: What the Council stated to be its reasons, quoted at [29], does not constitute reasons at all. The Council's brief statement merely identifies in a general way the body of material the Council considered and then states the conclusion reached in terms of the statute. There is nothing in this that would answer the description of a path of reasoning. In a document which disclosed a path of reasoning sufficiently to indicate whether the Council proceeded according to law one would expect to see identification of factual findings, which the Council considers reasonably likely to be made in the Tribunal, about the solicitors' communications with the RTA; reference to evidence which the Council believes is credible and likely to satisfy the Tribunal that the solicitors' communications were false; a statement of an expectation that the Tribunal would likely infer (from some identified facts) that the solicitors must have known their communications to the RTA were false and reference to rules or principles which the Council would expect the Tribunal to apply to the facts, with the result that findings of professional misconduct would be made.
The reasons in the decision of 1 February 2018 by the Law Society appropriately set out the facts that form the basis of the decision in paragraphs 1-13. What then purports to be the path of reasoning leading to the Law Society's decision is contained in paragraphs 14-16. In my opinion, these are not reasons, properly so called, that satisfy the requirement in s 318(2). This is so for a number of reasons.
First, general statements that exculpatory material has been considered without anything more cannot constitute adequate reasoning. For a start, the Law Society and the plaintiff might have a different perception of what material, even what was identified as being in four letters from the plaintiff's solicitor to the Law Society, constitutes exculpatory material. Further, the plaintiff does not know if, having been considered, the exculpatory material has been rejected as not ameliorating the conduct, or has been accepted in some way, perhaps, to influence the orders the Law Society would seek in the Tribunal.
Secondly, there was nothing inherent in the plaintiff's wrongdoing that necessarily led to a conclusion that professional misconduct might be established "as opposed to unsatisfactory professional conduct" (as paragraph 15 of the reasons refers). Section 298 sets out conduct which is capable of constituting either unsatisfactory professional conduct or professional misconduct. Paragraph (e) includes where the solicitor has been convicted of a serious offence which, by the definition in s 6, means an indictable offence, or convicted of an offence involving dishonesty, which would include an offence against s 11 of the Statutory Declarations Act 1959 (Cth). If being convicted of a serious offence or an offence involving dishonesty is capable of constituting unsatisfactory professional conduct, it follows a fortiori, that where the plaintiff has not been charged or convicted at all, her behaviour is capable of constituting unsatisfactory professional conduct.
The Law Society in its reasons offers no explanation why it formed the view that the alleged conduct may amount to professional misconduct only, although from the time of its preliminary decision on 14 December 2017 the Law Society appears to have reached that conclusion without offering any reasons for such a conclusion in that preliminary decision. That is why the failure to provide any reasons for the preliminary decision of 14 December 2017 is significant. When no reasons were offered in the 1 February 2018 decision for the conclusion that the conduct may constitute professional misconduct, the focus necessariIy shifts to the earlier decision to understand why that was the preliminary conclusion at that time. Yet one looks in vain.
In my opinion, a general statement that the Committee had considered s 299 does not offer any path of reasoning particularly when, in the absence of any reasons at all in the decision of 14 December 2017, the Law Society only considered, subject to any submissions, that the alleged conduct may amount to professional misconduct. In fact, the statement is puzzling, because s 299 only needs to be considered if the Law Society has reached the opinion that the conduct may amount to unsatisfactory professional conduct. Section 299 has no application to conduct that may amount to professional misconduct. Where the Law Society has not anywhere formed the opinion, preliminarily or finally, that the conduct may amount to unsatisfactory professional conduct, the reference to having considered s 299 indicates that the Law Society misapprehended its function, and asked itself the wrong question. That is a jurisdictional error: Craig v The State of South Australia (1995) 184 CLR 163 at 179.
Thirdly, the task in the 2004 Act, as I have noted, was to be satisfied to a reasonable likelihood that a practitioner would be found liable by the tribunal for either professional misconduct or unsatisfactory professional conduct. In Levitt (CA), McColl said of the term "reasonable likelihood" at [62]: It is also clear that the phrase "reasonable likelihood" is not a term having objective precision, although it would appear to refer to a lesser standard than the balance of probabilities. The exercise required in applying the test in s 537(2) (and s 540(1)(b)(i)) is likely to have a significantly speculatively character. [citing Donaghy v Council of the Law Scoiety of NSW (No 2) [2015] NSWCA 224 at [48]].
In the same way, the requirement under s 300 of the Uniform Law of the Law Society to reach an opinion that the conduct may amount either to professional misconduct or to unsatisfactory professional conduct that would be more appropriately dealt with by the tribunal, lacks objective precision and is likely to have a significantly speculative character. Further, if the opinion is, as here, that the conduct "may amount" to professional misconduct, it is impossible to exclude, as a matter of logic, that the conduct may similarly only amount to unsatisfactory misconduct.
That logical position is reinforced by the fact that the resolution included in the orders to be sought, that the solicitor be reprimanded with no more severe punishment. That resolution points clearly to the conclusion that the Law Society did not regard AB's conduct as in a relatively serious category.
All of that being so, there was an obligation on the Law Society's part to provide some reasons for its conclusion that the conduct may amount to professional misconduct and why it did not conclude that it may amount only to unsatisfactory professional conduct. In my opinion, the Law Society at that stage had the further obligation to provide reasons for why the particular circumstances of the conduct did not justify finally determining the complaint in accordance with s 299. Again, the need for that is highlighted by the fact that a reprimand is the second order provided for in s 299. Paragraphs 14-16 of the reasons provide no elucidation of the conclusion reached by the Law Society in its decision of 1 February 2018.
Fourthly, unlike s 537(2) of the 2004 Act, which required commencement of proceedings in the Tribunal unless s 540 applied, s 300 of the Uniform Law imports a discretion to initiate proceedings in the Tribunal. The effect of that discretion when taken in conjunction with ss 277 and 299, is that there are a number of possible outcomes where a complaint is intitiated: (a) The complaint can be closed at any time (s 277); (b) The conduct can be found to be unsatisfactory professional conduct which is determined summarily (s 299); (c) The Law Society can form an opinion that the conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the Tribunal (s 300(1)(a)); (d) The conduct can give rise to an opinion that the conduct may amount to professional misconduct (s 300(1)(b)); (e) In either (c) or (d) the Law Society can form the opinion but decide not to initiate proceedings in the Tribunal. That could be no more than a theoretical outcome if the conduct was thought to amount to unsatisfactory professional conduct because of the availability of s 299 outcomes. As was pointed out in Levitt (CA) at [57], those possibilities would not result in successive considerations but would be undertaken simultaneously. However, the discretion not to initiate proceedings in the Tribunal where an opinion of professional misconduct is reached is much more than a theoretical outcome because there is no equivalent of s 299 for professional misconduct.
For any of the outcomes reasons are required, whether because of s 318 or (as the Law Society contended at the hearing) by reason of the common law. The point for present purposes is that the reasons for the determination of 1 February 2018 embrace a need to explain the exercise of discretion in s 300(1)(b). They do not do so.
Two other matters were relied upon by AB to suggest error on the part of the Law Society. The first concerned using s 277 to close the complaint on the basis that the complaint had been or was being investigated by another body or that it would be better investigated by another body including a law enforcement body. The s 277 submission seemed also to embrace the second matter, which was the suggestion that, because of the serious impact of the matter on AB's health, it was otherwise in the public interest to close the complaint. I do not see any error on the Law Society's part in relation to those matters.
There was no indication of an ongoing investigation by DFAT at least by any later than 30 August 2016, even if it is accepted that telephone calls were made from the Fraud Office concerning passports at that time. There was no suggestion of any other law enforcement investigation.
Nor did the Bar Association investigate the same matter. Certainly, the Bar Association had to consider AB's conduct, but the focus of the Bar Association's enquiry was whether the applicant was fit and proper to have a practising certificate. The Law Society did not consider that AB was not fit and proper to hold a practising certificate because it took no action under ss 77 or 82 of the Uniform Law to suspend her practising certificate. The distinction between the two matters is readily understandable. The complaint against AB was that she had engaged in conduct in the past that required a disciplinary sanction. The conduct was not said to amount to such a defect in her fitness that she should no longer be allowed to practise even whilst the disciplinary matter was being concluded.
Nor do I consider that the investigation conducted by Firm 2 is of more than marginal relevance. That investigation looked at AB's fitness for employment, a different enquiry from the Law Society's, and the firm's powers of investigation were limited.
Moreover, the terms of s 277 make it unnecessary for the Law Society to give a practitioner the opportunity to be heard or make submissions even if the decision is not to close the complaint: s 277(4). In that way, no error is demonstrated by the Law Society not closing the complaint under s 277.
In my opinion the significant matter concerning the plaintiff's health for these proceedings was that the health issues arose after the conduct concerned. This was not a case of a person putting forward as an explanation for their conduct some mental health condition that caused or contributed to the behaviour. In those circumstances, whilst not minimising the extent of the plaintiff's mental health condition, that was a matter which could properly only have been considered in relation to what penalty, if any, should be imposed upon her in respect of the conduct. The only basis upon which her health condition could otherwise have been made relevant was pursuant to s 277(1)(j).
In my opinion, it was entirely within the discretionary and evaluative obligations of the Law Society whether it sought to pursue the complaint notwithstanding the plaintiff's health issues. The self-reported conduct was by no means trivial. It was arguably capable of amounting to a criminal offence, and it was self-evidently a serious matter for a solicitor, whether acting as such or not, to purport to witness a signature that she had not seen placed on the document acting in belief of the truth of what another person told her, even if that person was her boss. No error is shown by the Law Society for pursuing the complaint in the face of the plaintiff's health issues.
However, because the plaintiff's health is capable of being relevant to any penalty imposed for the impugned conduct, that matter, together with the intention of the Law Society to seek only a reprimand, provides a further basis for the Law Society to demonstrate in its reasons why it formed the opinion that the conduct may amount to professional misconduct but not unsatisfactory professional conduct.
Of course, the undoubted health problems of AB were also particularly relevant to the Law Society's obligation to deal with the matter in a timely and expeditious manner. Provisions of Ch 5 of the Uniform Law such as ss 260(a), 277(2), 279(1), 299(2), 300(2) and particularly s 317 stress the timeliness within which the complaint is to be dealt with. However, a failure to deal with the complaint in a timely manner does not ordinarily sound in any relief in judicial review proceedings.
The investigation of this complaint took what appears to be an extraordinarily long time in all the circumstances. The complaint was initiated because AB informed the Law Society of her wrongful conduct in November 2016. It is difficult to understand how the investigation of that matter could have taken as long as it did with a final decision only being made on 1 February 2018. There were a limited number of people to whom enquiries were necessary. Despite the inconsistent accounts given by CD during 2016, it seems that the Law Society had an admission from her of forgery of EF's signature by no later than the time the Law Society received her statutory declaration of 21 April 2017. Further, it knew at that stage that nobody was asserting that AB had not witnessed CD's signature on the application. Despite those matters it took until 15 December 2017 for the Law Society to inform AB that the complaint that she had not witnessed CD's signature would be closed, and it took until that date for the Law Society's preliminary decision to take the matter of the witnessing of EF's signature forward. In the meantime, on 7 December the Law Society raised the prospect of further separate complaints being made against AB without providing any details and despite nothing ever coming of that matter.
No explanation has been provided from the Law Society in these proceedings about why it took so long to investigate and reach a decision about the complaints. The speed with which the Law Society investigated the matters can be unfavourably compared with the speed with which the Bar Association completed its investigation, albeit for the purpose of determining fitness and propriety to hold a practising certificate, but, nevertheless, needing to investigate the same matters.
However, as I have said, tardiness of this sort is not a matter resulting in any relief in judicial review proceedings.

Conclusion

The failure to accord procedural fairness to the plaintiff, and the absence of adequate reasons in both decisions of 14 December 2017 and 1 February 2018 means that neither decision can stand. In addition, what purport to be reasons for the decision of 1 February 2018 disclose jurisdictional error at the time that decision was made.
Subsequent to my reserving my decision in this matter, the Law Society commenced proceedings in the tribunal on 1 August 2018. It was required to do so by that date. By agreement, those proceedings are stayed until judgment in this matter is given. In the Further Amended Summons, the plaintiff had sought an order to restrain the Law Society from commencing proceedings in the Tribunal. The plaintiff now seeks the following order in lieu: 4. The Council of the Law Society of New South Wales is restrained from taking any further steps in the proceedings commenced in the NSW Civil and Administrative Tribunal on the basis of the decision of the defendant's Professional Conduct Committee date 1 February 2018 recorded in its letter of 6 February 2018.
I intend to make an order in the nature of certiorari quashing the decisions of the Law Society made on 14 December 2017 and 1 February 2018. Neither the plaintiff nor the defendant seeks an order in the nature of mandamus. Since the Law Society initiated the complaint, and since it is, in any event, the designated local regulatory authority to pursue the complaint, I will make no further order in the nature of mandamus. It will be the Law Society's decision what flows from the orders in this judgment.
Accordingly, I make the following orders: 1. I make an order in the nature of certiorari quashing the decisions of the Law Society dated 14 December 2017 and 1 February 2018. 2. The Council of the Law Society of New South Wales is restrained from taking any further steps in the proceedings commenced in the NSW Civil and Administrative Tribunal on the basis of the decision of the defendant's Professional Conduct Committee dated 1 February 2018 and recorded in its letter of 6 February 2018, other than to: 1. take steps to discontinue the proceedings, or to otherwise have the proceedings dismissed or withdrawn; and 2. argue any question as to costs arising from the proceedings. 1. The defendant is to pay the plaintiff's costs of the proceedings.

Amendments 19 December 2018 - Typographical errors in paras [27] and [29] amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2018

Legal Profession Act 2004(NSW)ss 537, 540, 542

AB v Law Society of New South Wales

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